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Family Law

Family law is that body of law having to do with creating, ordering, and dissolving marital and family groups. Although the exact scope of family law is given differently by different authors, at its core family law is concerned with such issues and events as marriage, separation, divorce, alimony, custody, child support, and adoption, as well as the more arcane topics of annulment, paternity, legitimacy, artificial insemination, and surrogate parenting.

This entry on family law in the United States should be read with two important caveats in mind. First, it is somewhat misleading to write of ‘‘United States’’ family law. Because the power to regulate domestic life is not one of the powers delegated to the federal government by the Constitution, in the United States most family law has been ‘‘a virtually exclusive province of the states’’ (Sosna v. Iowa, 419 U.S. 393 [1975]). Despite considerable variation in state law, however, certain general trends can be identified. Moreover, researchers have identified similar trends in a number of European countries (Glendon 1989).

Second, many kinds of law that affect the family cannot be discussed here. These include laws that are not ordinarily listed under the rubric of ‘‘family law’’ but that have significant effects on family life in this country. These range from the laws of inheritance to zoning regulations and regulations about social welfare programs. While the impact on the family of a diversity of laws seems to become increasingly significant, this is not a uniquely modern phenomenon. For example, 200 years ago poor laws affected family life in ways that anticipated the impact of modern welfare laws (tenBroek 1964).

As was typical of much of early law in this country, most American family law was received from English law; but family law was atypical in that much of it was not derived from secular or ‘‘temporal’’ English law. In England, from the late twelfth century (Pollock and Maitland 1898, Vol. 2, p. 367) until the passage of the Matrimonial Causes Act of 1857, issues pertaining to marriage and divorce were governed by canon law, and most family matters were thus subject to the jurisdiction of ecclesiastical courts. While the American colonies had no ecclesiastical courts, English canonical rules concerning family relations were incorporated—either by statute or by common law tradition—into the laws of the colonies and, later, the states (Clark 1980).

Notwithstanding its religious heritage, family law in this country was completely secular. Although marriages were frequently performed by members of the clergy, the authority to solemnize marriages was vested in them by the state, not the church. In legal theory, at the basis of the family was a marriage that was a civil contract and not a religious sacrament.

This contractual view of marriage had some interesting consequences. For example, it led to official recognition of informal as well as formal marriage. This informal union, the so-called common law marriage, was effected by the simple express agreement of a man and a woman to be married, followed by their cohabitation. (Contrary to popular myth, common law marriages did not require a specific number of years to go into effect.) While today they are recognized only in fourteen states, until the twentieth century common law marriages were as valid as formal marriages in nearly every state (Wardle et al. 1988, § 3:17). Recognition of common law marriage meant that settlers on the geographic fringes of society, without access to officials, could enjoy the same protection of their property rights and their children’s legitimacy as was afforded in formal marriages. In 1833, Chief Justice Gibson of Pennsylvania ruled that rigid marriage laws were ‘‘ill adapted to the habits and customs of society as it now exists.’’ Not recognizing common law marriage, or so Gibson suggested, would ‘‘bastardize the vast majority of children which have been born within the state for half a century’’ (Rodenbaugh v. Sanks, 2 Watts 9).

After the Civil War, there was a movement to strengthen state regulation of marriage. Most states already required marriage licenses, but in antebellum America, courts had treated these licenses as a means ‘‘to register, not to restrict marriage’’ (Grossberg 1985, p. 78). By the end of the nineteenth century, however, marriage licenses had clearly become a means of social control. Because the process of acquiring a marriage license brought the couple under scrutiny of some official, licensing requirements helped states prevent marriages of people who were too young or too closely related, either by blood (consanguinity) or marriage (affinity). Official scrutiny of those seeking to wed also helped to enforce laws against bigamy and polygamy.

But legislators, encouraged by eugenicists who believed that crime, mental illness, and other social ills could be traced to hereditary biological factors, also enacted laws enumerating other kinds of forbidden marriages. For example, marriage was prohibited to those not mentally capable of contracting owing to conditions variously labeled as insanity, lunacy, idiocy, feeblemindedness, imbecility, or unsound mind (Clark 1968, pp. 95–96). Marriage was also prohibited to those physically incapable of performing the ‘‘marriage essentials.’’ Generally, this latter criterion involved only the capacity to have ‘‘normal’’ or ‘‘successful’’ sexual intercourse, not necessarily the ability to procreate. As one author explained it, ‘‘Copula, not fruitfulness, is the test’’ (Tiffany 1921, p. 29).

Eugenics also justified, scientifically, laws that prohibited people with certain diseases (e.g., epilepsy, tuberculosis, and venereal disease) and statuses (e.g., habitual criminal, rapist) from marrying. In most cases, such obstacles could be overcome only if the person consented to sterilization. Many believed such statutes were necessary to ‘‘prevent the demise of civilized-society’’ (Linn and Bowers 1978, p. 629). Even some of the most respected legal thinkers joined the eugenicists. Justice Oliver Wendell Holmes of the United States Supreme Court, for example, wrote that it would be ‘‘better for all the world, if instead of waiting to execute degenerate offspring for crimes, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind’’ (Buck v. Bell, 274 U.S. 200 [1927]).

The most notorious marriage impediment was race. By 1930, thirty states had enacted statutes prohibiting interracial marriages (Clark 1968, p. 91). For the most part, these antimiscegenation laws forbade marriages between whites and blacks, but in several cases the prohibition was extended to, for example, white and Malays, whites and Mongolians, whites and Native Americans, and blacks and Native Americans (Kennedy 1959, pp. 59–69).

Divorce was even more strictly regulated than marriage. However, the absence of ecclesiastical restrictions made divorces much easier to obtain in the United States than in England. This was especially true in the northern states. A few states even allowed divorce simply where the cause seemed ‘‘just and reasonable.’’ Connecticut, for example, permitted divorce for conduct that ‘‘permanently destroys the happiness of the petitioner and defeats the purpose of the marriage relation’’ (Clark 1968, p. 283). During the latter part of the nineteenth century such generous statutes were repealed, and divorce was allowed only in response to specific types of fault—usually adultery, desertion, cruelty, or long-term imprisonment.

Despite stringent regulation of entrance to and exit from marriage, husbands and wives in intact marriages were generally protected from legal scrutiny. Indeed, traditionally, the principle of nonintervention was so strong that neither husbands nor wives could invoke the law to resolve marital disputes even when they wished to. In one case, for example, the wife of a well-to-do but stingy husband asked the Nebraska courts to require him to pay for indoor plumbing and to provide a reasonable allowance to her. The court agreed that, given his ‘‘wealth and circumstances,’’ the husband’s attitude ‘‘leaves little to be said in his behalf.’’ But, said the court, ‘‘the living standards of a family are a matter of concern to the household and not for the courts to determine’’ (McGuire v. McGuire, 157 Neb. 226, 59 N.W.2d 336 [1953]). Similarly, the courts preferred a hands-off approach to parent–child relationships. As the United States Supreme Court ruled in 1944, ‘‘the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that [earlier] decisions have respected the private realm of family life which the state cannot enter’’ (Prince v. Massachusetts, 321 U.S. 158 [1944]).

The extent of the courts’ reluctance to intervene in family matters or, as it was sometimes put, to ‘‘disrupt family harmony,’’ was shown in the rule that spouses could not sue one another for personal torts or injuries. If, for example, a husband assaulted or battered his wife, she was enjoined from taking legal action against him in civil court (Keeton et al. 1984, pp. 901–902). In theory, the husband could be prosecuted in criminal court, but police and criminal courts too were reluctant to interfere in domestic matters (Pleck 1987, p. 187).

The practice of nonintervention was carried a step further at the turn of the century when the courts invented the doctrine of ‘‘parental immunity.’’ Owing to reasons of ‘‘sound public policy, designed to subserve the repose of families and the best interests of society’’ (Hewellette v. George, 68 Miss. 703, 9 So. 885 [1891]), an unemancipated minor was barred from suing his or her parents for negligent or intentional wrongdoing.

Owing to the state’s reluctance to intervene, the family has had a great deal of autonomy in this country, even to the extent that some have referred to the family as a ‘‘minisovereignty’’ (O’Donnell and Jones 1982, p. 7). In recent times, this autonomy has been justified on the basis of privacy rights. Speaking of the married couple’s right to make decisions about the use of contraception, the United States Supreme Court said in 1965, for example, ‘‘we deal with a right of privacy older than the Bill of Rights’’ (Griswold v. Connecticut, 381 U.S. 479 [1965]).

But things began to change in the late twentieth century. First, beginning in the 1960s, strict regulation of entrance to and exit from marriage began to unravel. In the 1967 case of Loving v. Virginia, the United States Supreme Court ruled unconstitutional all antimiscegenation laws, saying that the states had no right to ‘‘prevent marriages between persons solely on the basis of racial classification.’’ ‘‘Marriage,’’ said the Court, ‘‘is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival’’ (388 U.S. 1; quoting Skinner v. Oklahoma, 316 U.S. 535 [1942]). Since Loving, many other marriage restrictions have been repealed or eased. Age requirements in many states have been lowered; the mental ability needed to contract marriage has been ruled to be less than that required for other sorts of contracts; and the necessary mental competency is presumed to be present unless there is ‘‘clear and definite’’ proof to the contrary. Moreover, ‘‘there is a trend in modern times to abolish affinity restrictions’’ (Wardle et al. 1988, § 2:09); only one state (Missouri) still prohibits epileptics to marry (Wardle et al. 1988, § 2:47), and in many states, even prison inmates are deemed to have a right to marry (In re Carrafa, 77 Cal. App.3d 788 [1978]).

These changes reflect the courts’ willingness to protect the rights of individuals to make their own choices about marriage and related matters. The decision to marry, according to the Supreme Court, is among ‘‘the personal decisions protected by the right to privacy’’ (Zablocki v. Redhail, 434 U.S. 374 [1978]).

Presumably, much the same can be said about the decision to divorce; recent changes in divorce laws have, if anything, been even more dramatic than changes in marriage laws. Implicitly accepting the principle that there is a right to divorce, the Supreme Court ruled in 1971 that welfare recipients could not be denied access to divorce courts because they could not afford to pay court costs and fees (Boddie v. Connecticut, 101 U.S. 371 [1971]). By the mid-1980s, every state had either replaced fault-based divorce laws with no-fault laws or added no-fault grounds to existing laws (Freed and Walker 1986, p. 444). No longer, then, must there be a ‘‘guilty’’ and an ‘‘innocent’’ party in a divorce. Instead, one spouse simply needs to assert that the couple is no longer getting along or has been living apart for a certain amount of time.

While regulations governing entrance to and exit from marriage and family life have decreased, there has been a corresponding increase in regulations affecting relations in ongoing families. Spousal immunity has been abolished in most states. Moreover, in many states the law recognizes the crime of ‘‘marital rape.’’ Similarly, children now have more rights that can be asserted against their parents. For example, minors have the right to obtain information about and to use birth control without a parent’s consent (Carey v. Population Services International, 431 U.S. 678 [1977]); to receive psychiatric care (In re Alyne E., 113 Misc. 2d 307, 448 N.Y.S.2d 984 [1982]); and perhaps even to separate from their parents should the parents and children prove ‘‘incompatible’’ (In re Snyder, 85 Wash. 2d 182. 532 P.2d 278 [1975]). At base, says the Supreme Court, children ‘‘are ‘persons’ under the Constitution’’ and have rights that should be protected by the state (Tinker v. Des Moines Independent School District, 393 U.S. 503 [1969]).

Both the easing of marriage and divorce restrictions and the loss of family autonomy can be traced to the growth of individual rights that began in the 1960s. The idea of family autonomy and privacy and, hence, the policy of nonintervention were traditionally based on ‘‘paternal’’ authority; the authority of the family patriarch. This pattern can be traced back to the Roman idea of patria potestas—or the right of the father to exert absolute control over his family, including the power of life or death.

Family autonomy and privacy that is based on paternal power is viable only when other members of the family are unable to invoke the power of the state against the father. It was for this reason, then, that traditionally the woman’s power to invoke the law was suspended from the moment of her marriage (Blackstone [1769] 1979, Vol. 1, p. 430). Children, likewise, had no legal standing until they reached the age of majority.

Things are much different today: While children still have many ‘‘legal disabilities,’’ they can no longer be regarded as chattel. Women have achieved at least technical legal equality (though whether this has served to their advantage in divorce law is still subject to debate—compare Weitzman 1985 and Jacob 1988). Although the courts still speak of ‘‘family privacy,’’ it is becoming clear that such privacy is based on family members’ individual rights and exists only as long as family members are not in serious conflict about how they wish to assert those rights.

Some mourn the loss of near total family autonomy; the family, they say, has lost its integrity (Peirce 1988). There is no doubt that the notion of family autonomy or privacy served an important value: It has been ‘‘a convenient way for dealing with a problem . . . [that is] especially acute in the United States—that of devising family law that is suited to the needs and desires of persons with different ethnic and religious backgrounds, different social status, and different standards of living’’ (Glendon 1989, p. 95). In many instances, however, nonintervention created private Hobbesian jungles in which the strong ruled and the weak could not call upon the law for help.

As we move into the twenty-first century, families will continue to play an important role in society, and there can be little doubt that family relations will continue to be regarded as legally different from other relations and worthy of special legal protection. The question is, To whom is the law’s protection to be extended in domestic matters as the United States embarks upon the twenty-first century? Traditionally, lawmakers have extended this protection to a limited variety of relations—the father–mother–children household. If present trends continue, however, the traditional ideal-typical nuclear family will be something that is achieved (and perhaps aspired to) by only a small fraction of Americans (Difonzo 1997; Estlund and Nussbaum 1998; McIntyre and Sussman 1995; Reagin 1999).

As we move through the first decades of this new century, new and more complex family legal issues will emerge as people construct new communal arrangements, call them family, and seek the protections accorded by the law to more traditional arrangements (Dolgin 1999; Edwards 1999; Minow 1993). The most pressing question facing lawmakers is this: Will the law continue to afford its protections only to those domestic arrangements that mirror traditional family forms, or will it embrace and protect domestic arrangements insofar as they fulfill traditional family functions?

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